The following terms and conditions (collectively, the "Terms and Conditions") outline the respective obligations of Olympus America Inc. - Medical Systems Group ("Olympus") and you (the "Customer"), (collectively the “Parties”) with respect to certain benchmarking services to be performed by Olympus as described below. Customer's submission of data to Olympus for benchmarking assessment shall constitute Customer's acceptance of, and agreement to these Terms and Conditions, and shall legally bind Customer to the same.
Olympus shall make its proprietary peer-based performance evaluation software (the “Software”) available to Customer. The Software shall enable Customer to perform an Analysis, as described below to help it assess the relative performance of its GI-focused facility as compared to other similarly situated facilities (the "Analysis"). The Analysis will focus mainly on facility operations (i.e, various operating costs, procedures, practices, etc.). Upon completion of the Analysis, Olympus will provide the Customer results (the “Results”) (Olympus's performance of the Analysis and its generation of the Results hereinafter collectively the "Services").
B. Data Entry:
In order for Olympus to perform the ”Services”, Customer must fully and accurately complete the on-line survey that separately appears at this URL address. Customer understands and agrees that the usefulness and validity of the Results may be compromised by any erroneous or omitted information from Customer or third parties.
C. Limited Warranty; Limitation on Liability:
Olympus represents and warrants that the Services shall be performed in a manner consistent with the reasonable standard of care, skill, and diligence normally provided by professionals or experts in the performance of such Services or similar services. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, OLYMPUS MAKES NO AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR AS TO THE VALIDITY OR OWNERSHIP OF ANY PATENTS OR TECHNOLOGY USED IN CONNECTION WITH THE SERVICES. FURTHERMORE, EXCEPT AS PROVIDED IN THE FIRST SENTENCE OF THIS PARAGRAPH C, ALL GUARANTIES, WARRANTIES, CONDITIONS, AND REPRESENTATIONS WHATSOEVER, EITHER EXPRESS OR IMPLIED, WHETHER ARISING UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED. IN NO EVENT SHALL OLYMPUS OR ITS EMPLOYEES, CONSULTANTS, AGENTS OR REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS OR LOSS OF USE), WHETHER OR NOT OLYMPUS SHALL BE OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. WITHOUT LIMITING THE FOREGOING, OLYMPUS'S MAXIMUM LIABILITY TO CUSTOMER, WHETHER UNDER THESE TERMS AND CONDITIONS, IN TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO OLYMPUS FOR THE PERFORMANCE OF THE SERVICES.
In addition to the foregoing, the Customer understands and agrees that the Results will contain the following disclaimer, the terms of which (i) are hereby incorporated into these Terms and Conditions, and (ii) shall govern in the event of a conflict or inconsistency with any other provision in these Terms and Conditions:
"The Results are intended to provide a comparative analysis of Customer's operations. The Results are based upon information provided by the Customer, as compared to voluntarily received data from other similarly situated facilities. Olympus has not independently verified the accuracy or completeness of the information provided by the Customer or by other customers whose data comprises the database. Furthermore, the data comprising the database may not be representative of the industry as a whole. Accordingly, Olympus and its employees, consultants, agents and representatives cannot and do not guarantee the findings set forth in the Results, or the accuracy or usefulness thereof. Under no circumstances shall Olympus or its employees, consultants, agents or representatives be liable for any costs, expenses, losses, claims, liabilities, or other damages (whether direct, indirect, special, incidental, consequential or otherwise) that may arise from or be incurred in connection with these Results or any use thereof."
Some states may not recognize a disclaimer or limitation of warranties and/or limitation of liability so the above disclaimers may not apply. The Customer may also have different and/or additional rights and remedies that vary from state to state. Representations and warranties made by any person, including agents or representatives of Olympus, which are inconsistent or in conflict with the foregoing, shall not be binding upon Olympus unless reduced to writing and approved by an expressly authorized officer of Olympus.
D. Discount Disclosure:
The parties acknowledge that the compensation to be paid to Olympus for the performance of Services is fair, equitable and reasonable. Nevertheless, this transaction may result in a discount or reduction in price as to which the Customer may be obligated to properly disclose or appropriately reflect in costs claimed by it to the Medicare, Medicaid and other federal healthcare programs or state healthcare programs. Any such discount or reduction in price is fully and accurately reported herein in accordance with Section 1128B(b)(3) of the Social Security Act, 42 U.S.C. § 1320a-7b(b)(3). If the Customer requires any further information, the Customer may contact Olympus and such information will be provided.
E. Confidentiality and Non-Disclosure:
Each party acknowledges that it may furnish certain confidential and/or proprietary information to the other party in connection with the performance of the Services. Accordingly, consistent with the following terms and conditions, the parties agree to undertake commercially reasonable efforts and precautions to safeguard the confidentiality of all such information.
In particular, as used herein, the term "Confidential Information" shall mean all documents (and verbal communications reduced to writing within thirty (30) days following verbal disclosure) clearly marked as "PROPRIETARY" or "CONFIDENTIAL", relating to the products and businesses of the parties which: (i) are disclosed, upon request, by one party hereto to the other, and (ii) are claimed by the disclosing party to be secret, confidential and proprietary to the disclosing party. Notwithstanding the foregoing, the parties understand and agree that the Report, including any and all drafts, summaries and components thereof, shall be deemed Olympus's "Confidential Information" hereunder, whether or not so identified in writing by Olympus (but with the understanding that any Customer-specific financial and/or operational data incorporated into the Report shall be deemed the Customer's Confidential Information, which may be used by Olympus only in a generic, "no-names" manner). Confidential Information shall not include information that: (i) was known (as evidenced by written or other recorded records) by the receiving party prior to receipt from the disclosing party, (ii) was or is independently developed by the receiving party (as evidenced by written or other recorded records), (iii) is or becomes a matter of public knowledge (except through disclosure by the receiving party), (iv) must be disclosed under operation of law (in which case the disclosing party shall be notified in writing prior to disclosure and given an opportunity to seek a protective order, provided that such notice is permitted by law), (v) is rightfully received by the receiving party from a third party without a duty of confidentiality, or (vi) is not requested or is immediately refused by the receiving party.
Each receiving party hereby agrees that:
(1) It shall keep the Confidential Information strictly confidential. Except as otherwise expressly provided herein, Confidential Information shall be used by the receiving party solely for purposes directly associated with the Services, and for no other purpose.
(2) It shall not disclose, publicize, or disseminate in any fashion any Confidential Information to any third parties without the prior written consent of the disclosing party. Notwithstanding the preceding sentence, Olympus may provide the Customer's Confidential Information to its agents, representatives and consultants, on a "need to know" basis for purposes of performing the Services. In addition, the parties represent and warrant that their respective employees are bound by a duty of confidentiality, and that Confidential Information may be disclosed to their respective employees on a "need to know" basis only.
(3) It has not entered into, and agrees that it will not enter into, any agreement (whether written or oral) which is in conflict with these Terms and Conditions.
Each party's duty to protect Confidential Information shall expire five years from the date of final completion of the Services.
Either party may terminate the Services and these Terms and Conditions at any time upon written notice of such termination to the non-terminating party. In the event of such termination, for whatever reason, Olympus shall be equitably compensated for Services performed to the date of such termination. Paragraphs "C", "D", "E" and "F" herein shall survive expiration or earlier termination.
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Pennsylvania without regard to the conflicts of laws rules thereof and, for all purposes, these Terms and Conditions shall be deemed executed and fully performed in Pennsylvania. The Customer and Olympus each hereby waive any objection it may now or hereafter have to and consent to the jurisdiction, venue, or convenience of the Pennsylvania State or Federal courts and hereby agree that any dispute arising under, in connection with, or as a result of the Services or these Terms and Conditions must be submitted to and adjudicated exclusively by the Pennsylvania State or Federal courts.
All amounts owed to Olympus for the performance of the Services shall be paid by the Customer within thirty (30) days of the date of Olympus's corresponding invoice.
These Terms and Conditions represent the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous understandings between the Customer and Olympus with respect to such subject matter. The terms and conditions of the Customer's purchase order, or any other transactional document shall be of no force or effect unless signed by both parties and in writing.